Skyline Dredging and Excavating, Inc. (Commission decision, March 2, 2012)

Plain-English summary

A Chief ALJ issued a show-cause order after Skyline Dredging did not answer a penalty petition, and the order would have produced a default after 30 days. Both the petition and show-cause order were sent to Skyline's prior address and were never received. The Commission held that the default therefore had not become a final Commission order. It remanded the case and required Skyline to answer within 30 days.

Decision snapshot

• Governing authority: Federal Mine Safety and Health Act of 1977
• Outcome: The nonfinal default was set aside, the case was remanded, and an answer was due within 30 days.
• Key point: A self-executing default cannot become final when the operator never receives the show-cause order that triggers it.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

March 2, 2012

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

SKYLINE DREDGING

AND EXCAVATING, INC.

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Docket No. WEST 2010-1412-M

A.C. No. 24-02140-220439 Q031

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On September 13, 2011, the Commission received from Skyline Dredging and Excavating, Inc. (“Skyline”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the order of default entered against it.

On March 18, 2011, Chief Judge Lesnick issued an Order to Show Cause and Order of Default in response to Skyline’s failure to answer the Secretary’s August 6, 2010 Petition for Assessment of Civil Penalty. The judge ordered the operator to file its answer within 30 days or it would be in default. The Commission did not receive Skyline’s answer within 30 days, so the order of default became effective on April 18, 2011.

Skyline asserts that it did not receive the Order to Show Cause or the Secretary’s previously filed Petition for Assessment of Civil Penalty because they were sent to the wrong mailing address. The Secretary does not oppose the motion to reopen, but notes that Skyline changed its address of record on April 6, 2011, after the petition and order were sent to the previous address.

Having reviewed Skyline’s request and the Secretary’s response, in the interest of justice, we conclude that the Order of Default has not become a final order of the Commission because the Order to Show Cause was never received by Skyline. Accordingly, this case is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Skyline shall file an Answer to the Show Cause Order within 30 days of the date of this order.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy                                                                                         

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Rhonda Hoon

Skyline Dredging & Excavating Inc.

P.O. Box 1849

Columbia Falls, MT 59912

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021